On 15 April 2021, Advocate General Kokott issued her legal opinion in Case C-490/20, a request for a preliminary ruling with far-reaching implications for LGBTQ+ rights in the EU.

The Court of Justice of the European Union (CJEU) has been asked to decide whether Bulgaria’s refusal to issue a birth certificate to a child with two mothers, on the basis that Bulgaria does not recognise same-sex marriages, violates EU law.

The Advocate General considered that Bulgaria cannot invoke national identity to justify a refusal to recognise the family ties between a same-sex couple and their child, as established in a Spanish birth certificate. EU law provides that the right of all EU citizens to move and reside freely within the territory of the Member States should also be granted to their family members, irrespective of nationality.

Background

The case concerns a child born in Barcelona, Spain in December 2019 with two mothers - a Bulgarian national and a UK national from Gibraltar. The Spanish authorities issued a birth certificate for the child, listing both mothers as the child’s parents.

In January 2020, the Bulgarian mother requested the Bulgarian authorities to issue a birth certificate for the child based on the Spanish birth certificate. The Bulgarian municipality rejected the request. It mainly justified its decision by arguing that same sex marriages are against Bulgarian public policy.

The Bulgarian mother therefore lodged a claim with the Administrative Court of the City of Sofia against the Bulgarian authorities’ refusal to issue the birth certificate for the child. The Administrative Court referred the case to the CJEU.

More details regarding the background to the case can be found here.

EU Member States must enable their citizens and their families to exercise freedom of movement regardless of their stance on same‑sex marriage

As in many other EU Member States, under Bulgarian law, a Bulgarian birth certificate is a prerequisite for the child to obtain Bulgarian identity documents. Thus, by refusing to issue a birth certificate, the Bulgarian authorities would effectively deprive the child of the possibility of obtaining a Bulgarian identity document. The Advocate General considered that there is no doubt that the effective exercise of the right to free movement of the child would be seriously compromised if the child did not have any valid identity documents.

The Advocate General concluded that, even though Bulgaria does not recognise same-sex marriage in its domestic law, under EU law on the free movement of citizens and their family members:

  • Bulgaria is bound to issue to the child an identity document and travel documents which refer to both mothers as parents of the child; and
  • Bulgaria cannot refuse to recognise the family ties between the child and the two mothers identified in the Spanish birth certificate.

A welcome development for LGBTQ+ rights

While the Advocate General’s opinion is not binding on the CJEU, it certainly opens the door for the CJEU to safeguard LGBTQ+ rights in the EU.

The CJEU’s decision, expected later this year, will be crucial for LGBTQ+ rights across the EU. A case with a similar factual situation, concerning a child with two same-sex parents who is unable to obtain a birth certificate in Poland, is currently before the CJEU (Case C-2/21).

Similarly, in Germany, the Higher Regional Court of Celle found that the lack of recognition of two mothers in the German Civil Code is unconstitutional (OLG Celle, Order 24.03.2021, Az. 21 UF 146/20). The matter is now before the Federal Constitutional Court in Germany.